Citation Nr: 9829011
Decision Date: 09/28/98 Archive Date: 10/01/98
DOCKET NO. 95-00 090 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to an increased rating for a herniated nucleus
pulposus at L5-S1 with degenerative disc disease, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
D. S. Nelson, Associate Counsel
INTRODUCTION
The veteran had active duty from June 1968 to May 1988.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a September 1994 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia, which granted service connection for the
veteran's low back disorder and assigned a 10 percent rating.
The veteran appeals for a higher rating.
The veteran was denied service connection for tinnitus in an
April 1998 rating decision. That issue is not in appellate
status as no notice of disagreement has been received to
initiate an appeal from the RO’s decision.
REMAND
In a September 1997 remand, the Board instructed the RO to
(a) contact the veteran to determine if there were any
additional relevant medical records available; (b) schedule
orthopedic and neurological examinations; (c) adjudicate
raised, intertwined issue of entitlement to service
connection for residuals of compression fractures of the
thoracic and lumbar spine; and (d) consider Esteban v. Brown,
6 Vet. App. 259, 261 (1994). The veteran failed to respond
to a letter from the RO regarding whether there are any
additional pertinent treatment records and the orthopedic
examination was accomplished, which included a neurological
component and addressed DeLuca v. Brown, 8 Vet. App. 202
(1995). However, the RO failed to adjudicate the raised,
intertwined issue of entitlement to service connection for
residuals of compression fractures of the thoracic and lumbar
spine; and consider Esteban as instructed. A remand is
necessary because the RO failed to follow all of the
directives in the Board’s September 1997 remand. Stegall v.
West, U. S. Vet. App. No. 97-78 (June 26, 1998).
The Board further notes that the service medical records
indicate that the veteran suffered several compression
fractures in May 1977. It was reported upon a September 1994
VA examination that X-rays revealed degenerative disc disease
at L5-S1 with evidence of old trauma at L4-L5. The diagnosis
was history of low back trauma with X-ray evidence of old
trauma to L4-L5 with degenerative disc disease at L5-S1.
Upon a July 1996 VA examination, it was reported that X-rays
revealed compression fractures involving T10-T12. There was
also a small anterior traction spur or mild compression
involving the end plate of L4. The impression was status
post multiple compression fractures of the thoracic and
lumbar spine with chronic and persistent pain. Pursuant to
the Board’s 1997 remand, the veteran underwent another VA
examination in April 1998. It was noted at that time that X-
rays revealed deformity involving the upper body of L4, as
well as wedging of T11 and T12. The X-ray findings were
noted to be compatible with compression fractures. The
impression was degenerative disc disease involving the lumbar
spine and thoracic wedging. There were no findings
compatible with lumbar disc herniation.
While the several examiners noted above referred to X-rays of
the veteran’s spine, the actual X-ray reports are not of
record. An attempt should be made to secure these
radiological reports. Ivey v. Derwinski, 2 Vet. App. 320
(1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).
The Board also finds that, given the veteran’s contention of
increased disablement due to disc disease of the lumbar spine
and the questions raised by the intertwined issue of service
connection for vertebral fractures, an examination performed
by a neurologist is warranted. Caffrey v. Brown, 6 Vet. App.
377 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991).
In view of the foregoing, this case is REMANDED to the RO for
the following action:
1. The RO should obtain all of the
veteran’s hospital and outpatient clinic
records from the VAMC in Richmond,
Virginia, and associate them with the
claims folder.
2. Following the above, the veteran
should undergo a VA neurological
examination to determine the current
severity of his service-connected
herniated nucleus pulposus at L5-S1 with
degenerative disc disease, and the
etiology and extent of compression
fractures of the thoracolumbar spine.
Documentation of the veteran’s
notification of the scheduling of the
examination should be associated with the
record. The claims folder must be made
available to the examiner for his or her
review in conjunction with the
examination.
The examination should include all
indicated diagnostic studies or tests,
including X-rays of the spine. The
neurologist should indicate whether any
noted intervertebral disc disease is
productive of recurring symptoms
compatible with sciatic neuropathy with
characteristic pain and demonstrable
muscle spasm, an absent ankle jerk, or
other neurological findings appropriate
to the site of the diseased disc.
Through obtaining the veteran’s history,
the examiner should note the frequency
and duration of such attacks.
The radiologist and/or the neurologist
should also note any vertebral deformity
due to a fracture.
The neurologist should also opine whether
it is at least as likely as not that any
vertebral fracture that is identified is
causally linked to any incident of
service, including trauma. It is
important that the examiner review the
veteran’s service medical history in this
regard, including his multiple parachute
jumps and the back injuries sustained
during his 20 years of active duty (June
1968 to May 1988).
3. Thereafter, the RO must adjudicate
the raised, intertwined issue of service
connection for residuals of compression
fractures of the thoracolumbar spine,
including T-10, T-11, T-12, and L-4, and
readjudicate the issue of entitlement to
a rating in excess of 10 percent for a
herniated nucleus pulposus at L5-S1 with
degenerative disc disease. If service
connection is granted for any vertebral
compression fractures, the RO must
consider the note following 38 C.F.R.
§ 4.71a, Code 5285 regarding demonstrable
deformity of a vertebral body. In rating
the veteran’s service-connected back
disability or disabilities, the RO should
also consider Esteban v. Brown, 6 Vet.
App. 259, 261 (1994).
If any claim is denied, the veteran and his representative
should be issued a supplemental statement of the case and
given an opportunity to respond before the case is returned
to the Board.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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